Citation Nr: 0335189
Decision Date: 12/16/03 Archive Date: 12/24/03
DOCKET NO. 91-47 310A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for residuals of a stab
wound to the left leg.
2. Entitlement to service connection for left knee
arthritis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
REMAND
On July 17, 2002, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case. Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.
Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision. See 38
C.F.R. § 19.9(a)(2) (2002).
However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. § 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV"). The Federal Circuit held that 38
C.F.R. § 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. § 20.1304, was inconsistent with 38
U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.
Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA). VAOPGCPREC 1-03. Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.
Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions. In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.
In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.
Accordingly, this matter is REMANDED to the RO for the
following:
1. Make arrangements with the appropriate
VA medical facility for the veteran to be
afforded the following examinations:
A. Scars: The veteran should be accorded
the appropriate VA examination for scars.
The examiner should examine both of the
veteran's upper legs from the knees to the
hips for scars that are the residuals of
inservice stab wounds. The service
medical records indicate that the veteran
had three 1 inch sized stab wound scars in
the area of the thigh, but did not
indicate which leg was wounded. The
examining physician is requested to
clarify which leg has the residual stab
wound scars. The examiner is also
reminded that an August 1998 private
medical examination report shows that the
veteran underwent left knee arthroscopy so
there should be a residual scar from this
post-service surgery. The report of
examination should include a detailed
account of all manifestations of the scars
of both upper legs found to be present.
All necessary tests should be conducted
and the examiner should review the results
of any testing prior to completion of the
report. The examiner is requested to
indicate if the residual stab wound scars
are: tender and painful on objective
demonstration, ulcerated adherent, and/or
poorly nourished.
B. Joints: The veteran should be
accorded the appropriate VA joint
examinations for both knees and both hips.
The report of examination should include a
detailed account of all manifestations of
hip and knee pathology found to be
present. All necessary tests should be
conducted and the examiner should review
the results of any testing prior to
completion of the report. Specifically x-
ray examination of both hips and both
knees should be conducted. If there is
arthritis indicated by the x-ray
examinations, the examiner needs to
indicate if the arthritis relatively
symmetrical as a result of the aging
process, or if it is asymmetrical with it
being related to the veteran's inservice
stab wound trauma.
The examining physicians should provide
complete rationale for all conclusions
reached. Send the claims folder to the
examiners for review.
2. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
R. GARVIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).